The recent case of the passing of ten year old Amal Umer has devastated the city. A case of the absolute failure of the system was highlighted by Amal’s mother in her heartbreaking article titled “How the system failed us” in Dawn, on 16 September 2018.
In her article she has demanded accountability and justice and in her pain she has sought the change in the system so as to ensure that no person, especially child, suffers the way hers did. This is an attempt to recognize her struggle, research the law and rights of citizens and highlight the shortfalls of the system.
1. Following the Constitution (Eighteenth Amendment) Act, 2010 (the law commonly referred to as the 18th Amendment), the topic of health was significantly devolved from the Federal Ministry to the provincial governments. However, unlike other devolved matters, health remained a controversial one with the Federal Ministry continuing to retain control over certain matters instead of a clear devolution to the provincial governments.
2. The involvement of the police in deaths resulting from criminal activity (including road accidents) in Karachi is regulated by the Sindh Police.
3. In 2014, following a number of deaths on the roads of Karachi due to the increase in street crimes, the Sindh Provincial Assembly passed the robust Sindh Injured Persons (Medical Aid) Act, 2014 (the “Sindh Medical Act”). The salient features of the Sindh Medical Act included, amongst others, that if an injured person is brought to a government hospital recognized by the government as having emergency facilities (not all hospitals), he/she shall be provided medical aid without delay on priority basis over all other medico-legal formalities (Section 3). Moreover, no police official shall be permitted to “interrupt or interfere during the period an injured person is under treatment in a hospital except with the written permission of the incharge of the hospital” (Section 4). This permission was also restricted to such cases where it was “necessary in connection with an investigation which may be carried out in the hospital so long as the injured person is under treatment”.
The Sindh Medical Act provided, unequivocally, that “an injured person shall not be shifted from a hospital until he is stabilized or the requisite treatment is not available in such hospital and while shifting him to another hospital, the doctor concerned shall complete the relevant documents with regard to the clinical conditions of the patient and handover such documents to the concerned doctor of the receiving hospital” (Section 6(1)). Section 6(2) provided that if it was necessary to shift an injured person, such person “shall not be shifted unless he is accompanied by a doctor of the referring hospital” (proviso to Section 6(2)).
4. In addition to the above the Sindh Medical Act provided for the protection of good Samaritans that brought strangers in for medical care. This appears to endeavor to encourage bystanders to assist in emergencies without the fear that they will be harassed and interrogated upon arrival at the hospital. Section 9 provides that “a person who brings an injured person to a hospital on humanitarian basis, in particular in traffic accident cases, shall not be harassed and shall be shown due respect and acknowledged for helping the injured. He shall be allowed to leave the hospital…” after relevant details have been noted by the hospital.
5. The penalty under this legislation amounted to imprisonment, a fine or both and provided further that “the court may direct the Pakistan Medical and Dental Council… to cancel the registration of a doctor convicted by the court” (Section 11).
6. The issue with the Sindh Medical Act is that it only applies to such government hospitals that have been notified by the Sindh Government as having facilities to deal with emergencies. So far it appears there are three (3) hospitals that have been so notified, JPMC, Civil Hospital, and Abbasi Shaheed Hospital. All other hospitals, including private hospitals, are encouraged to but not bound by the abovementioned legislation.
7. These hospitals, however, are, generally, bound by the Code of Ethics for Medical Practitioners issued by the Pakistan Medical and Dental Council (“Ethics Code”) but the Ethics Code is not law. It provides for the general principles of humanitarian duties and care and provides that a physician is under a duty to “give emergency care as a humanitarian duty unless he is assured that others are willing and able to give such care” (Article 4(e)). The same is true of the Oath of Medical Practitioners which includes the promotion of good values and humanitarian duties. It, again, does not have the force of law.
II. Matters to Consider
1. There is a requirement of medico-legal services preceding emergency care provided by a hospital which often results in delayed or refused medical care due to the hesitation of the hospitals to get involved with the long and burdensome procedure of the police and other authorities.
2. There is a shortage of staff trained for medico-legal services and it is often handed over to junior doctors and trainees. Moreover, as per the law, only female medico-legal officers can check female patients reducing the number of services available.
3. The lack of ambulance services and the lack of regulatory control over the ambulance services available. There are no specific certifications or reporting requirements on companies providing emergency services and therefore, no accountability when they fail to provide the same.
4. The lack of accountability of medical practitioners.
5. The lack of successful litigation against medical practitioners.
6. The inability of the authorities to maintain a strict register of medical practitioners(private and government).
7. There is no monitor or checks and balances over certified medical practitioners and therefore, no fear of any regulatory penalties such as revocation of certificate to practice, fines etc.
8. The lack of road and traffic regulations regulating the path of ambulance services if the ambulance services respond to the emergency call.
9. The freedom of private hospitals to run as businesses rejecting emergency services or patients with low mortality.
10. A lack of checks and balances on the facilities offered by all hospitals; i.e. how many ventilators, staff, doctors, etc.
11. No accountability when a hospital transfers or orders transfer of a terminal or emergency patient to another hospital.
12. The lack of standard procedure, policies, regulations on private or semi-government hospitals.
III. Recommendations (immediate)
1. There is a dire need for the restructuring of the hospital business in Karachi.
2. The Sindh Medical Act can be used as an effective model for a similar law/regulation affecting private hospitals that should need to comply with certain basic standards of performance to remain certified as hospitals and permitted to dispense medical care.
3. The dire need to restructure road and traffic laws to make it mandatory for traffic to make way for emergency vehicles. Such amendments were approved to the Motor Vehicles Ordinance, 1965 in the Sindh Cabinet Meeting in May, 2018. So far this has not been gazetted. Beyond the reform in legislation, the implementation of the road laws by the traffic police will remain a challenge and should be pursued on a priority. The importance of the “Golden Hour” of successfully taking an emergency patient to the hospital has been recognized by various international studies.
4. Laws and regulations with respect to ambulance service providing companies. There should be a minimum requirement of the certifications/licenses received by such companies that they will comply with the best international standards of running an ambulance service, will report the responses/rejections made, will maintain a record of call-center services that receive emergency calls, will have the basic requirements of sustaining an emergency case until it reaches the hospital etc. The ambulance companies should be held to a higher standard of care and accountability.
5. With respect to licensing of doctors, the requirements are available in Pakistan but there is not much credence given to these. Like developed countries, doctors should be required undertake regular training on how to best respond in emergency cases and be held accountable to the actions taken by them under such circumstances.
6. Awareness programs should be conducted on a regular basis to highlight stories like Amal’s, to understand the failures of the system and to ensure that they are not repeated.
Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Karachi, Pakistan.